What’s next for the impeachment hearings?

CHARLESTON — Lots of twists and turns remain on West Virginia’s Supreme Court impeachment adventure.

“It’s a sad historical moment but we are where we are,” Delegate Rodney Miller, D-Boone, said on “580 Live” on WCHS Radio.

The House of Delegates got passed 11 articles of impeachment against four remaining justices last month. Miller is one of the official impeachment managers for the House.

The Senate assured impeachment trials this week by batting down a settlement proposal that would have censured justices Margaret Workman and Beth Walker. Senators also voted down a motion to dismiss articles against retired Justice Robin Davis.

Here’s a look at how we got here and where we go next.

What happens next?

“We couldn’t start tomorrow. As we told the court, we need some time to prepare,” said House Judiciary Chairman John Shott, who will essentially be in the role of lead prosecutor.

“We’ll apparently be receiving about 50,000 documents. We will be ready We’ll go forward and present hopefully effective efforts in each case.”

The prosecution, represented by five managers from the House of Delegates, is exchanging evidence and witness lists with lawyers for the justices. That information and other documents are publicly available on an impeachment proceedings page at the Legislature’s website.

The schedule

The pattern is to allow about two weeks for each trial.

Walker starts off at 9 a.m. Oct. 1. That’s just one day before the scheduled federal trial of her former colleague, Allen Loughry.

Workman is set for 9 a.m. Oct. 15.

Robin Davis, who has gathered a legal team of national reputation, goes at 9 a.m. Oct. 29.

There’s a scheduled break to observe Election Day, which is Nov. 6.

Then, starting at 9 a.m. Nov. 12, the Senate trial of Loughry begins.

The cost

The total estimated average daily cost for the Court of Impeachment is about $10,915. That’s broken down like this:

Senator salary (daily rate of $150, plus Chamber duties for president, majority leader and minority leader): $5,350

Senator average per diem (including mileage): $4,600

Doorkeepers: $554

Sergeant at Arms: $155

Per diem attorney: $256

The total bill depends on how long the trials last.

The presiding judge allotted two weeks for each trial. So 10 weekdays for four trials would be about 40 days and about $436,600.

The allegations

Of the 11 articles of impeachment passed by the House, some name individual justices and others name multiple justices.

Seven name Loughry, four name Davis, three name Workman and one names Walker.

Each of those justices is named in an all-encompassing maladministration charge of failing to establish policies about remodeling state offices, travel budgets, computers for home use and framing of personal items.

Loughry, who also faces two dozen federal charges, is accused of taking a state-owned antique “Cass Gilbert” desk to his own home, of driving a state vehicle to personal events, of having state computer equipment installed at his home for personal use and of lying under oath to the House Finance Committee.

Loughry and Davis are also named individually in articles focused on their expensive office renovations — $500,278.23 for Davis, $363,013.43 for Loughry.

Loughry, Davis and Workman are all named in articles claiming they circumvented state law to pay senior status circuit judges above a capped amount as they filled in on open benches around the state.

Resignations

Justice Menis Ketchum resigned before impeachment began. He pleaded guilty in federal court to a wire fraud charge related to his use of a state vehicle to drive to golf outings in Virginia. His use of a state-issued purchasing card for gasoline triggered a fraudulent cross-state payment.

The House of Delegates declined to consider impeachment of Ketchum when he announced his retirement the day before the proceedings began.

Davis announced her resignation Aug. 14, the day after the House passed the articles of impeachment.

Senators decided to include Davis in the trials and now Delegate Mike Caputo, D-Marion, wants the governor to call a special session to consider impeachment of Ketchum.

Davis is investing significantly in her own defense. Her legal team includes James Cole, former deputy attorney general of the United States.

There was a divide in the Senate about whether to go ahead with the charges against Davis.

In the end, Senate declined to dismiss charges against Davis so they could consider the facts and, if necessary, bar her from returning the bench as a senior status judge or holding any other office of public trust.

And Senator Craig Blair, R-Berkeley, said a Senate trial would give Justice Davis an opportunity to clear her name. He also said proceeding could reflect on Davis’s ability to collect on her pension.

Nothing in the Constitution’s wording about impeachment specifies that the official’s pension would be at risk. Gov. Jim Justice’s office has notified Davis that she is eligible for her pension after 22 years on the bench.

The West Virginia Public Employees Retirement Act says “Any member of the retirement system who has been removed from office or his office shall have been vacated for official misconduct, incompetence, neglect of duty, gross immorality, malfeasance, or misfeasance shall immediately have his membership in the retirement system terminated permanently by the board of trustees and shall never become eligible for an annuity.”

The official’s personal contributions would be refunded. The determination would lie with the West Virginia Consolidated Public Retirement Board.

Getting ready

There are already 74 exhibits and transcripts representing eight sets of testimony just from the House Judiciary Committee hearings.

“We have identified on our side at least 30 witnesses that would need to be called,” Shott, R-Mercer, told senators.

“We’ve been told there may be as many as 60 witnesses on the other side, voluminous documentation. We’ve developed exhibits that exceed 100. We’ve also been provided with over 50,000 documents by the opposing parties that we are attempting to sift through.”

Because the articles are intertwined but the trials are separate, some witnesses may be called multiple times to testify.

“We are prepared to hear the trial,” Senate President Mitch Carmichael, R-Jackson, said on MetroNews’ “Talkline.”

“The question is, are the House managers prepared to present the case? They presented these articles of impeachment and we’re willing to sit as a court of impeachment to hear that.”

Shott said, despite the voluminous material, the managers will be prepared.

“We will go forward,” he said. “We’ll be ready.

A deadline

“We have four cases that are pending, and we have a limited time to get those resolved,” Shott said on “Talkline.”

“As you know when the (November General) Election is certified in early December, both the House and Senate turn over and essentially any impeachment proceedings that are in process would have to begin again.”

Research by the Senate staff, including its parliamentarian, indicates greater flexibility.

The Constitution authorizes the Senate to sit during the recess of the Legislature for an impeachment trial.

That may provide the latitude to try impeachments beyond an expiration of the current legislative year. That conclusion was passed on by Senate Communications Director Jacque Bland:

“These are all seats, and they don’t change. The people in those seats change, but the actual Senate doesn’t change. Whoever sits in that seat has that Constitutional duty of being a juror in this trial. They wouldn’t have to start the whole process over.”

Tweet @BradMcelhinny. Email Brad.McElhinny@wvradio.com

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